Some perspectives on constitutional conflict in local disaster management through the lens of Pheko v Ekurhuleni Metropolitan Municipality 2012 2 SA 598 (CC) : case note

• Jurisdiction: South Africa
• Date: 01 January 2013
• Published date: 01 January 2013
• DOI: 10.10520/EJC153132
• Pages: 448-468
• Published By: UNISA Press
• Author: Angela Van den Berg,Anel Du Plessis

Some perspectives on constitutional

conflict in local disaster management

through the lens of Pheko v Ekurhuleni

Metropolitan Municipality 2012 2 SA 598

(CC)

Ané l du P lessis a nd An gela van den Be rg

* **

Abstract

Soc ially c reated vulne rabilit ies ar e lar gely i gnore d in the ha zards and disas ter lit erature

be caus e th ey ar e so diff icult to m easur e an d qu antify. Soc ial vu lnerab ility is par tially a

pro duct of socia l inequi ties – th ose so cial fa ctors a nd for ces th at crea te the susce ptibility

of variou s gr oups to h arm, and in turn affec t the ir ab ility to re spond , and bou nce back

(res ilienc e) after the disa ster. Bu t it is mo re than tha t. So cial vulne rability inv olves the bas ic

pro vision of h ealth care, the liveabi lity of place s, ov erall i ndicat ors o f qu ality of life, and

acc essib ility to lifelin es ( goods , se rvices , em ergen cy re spons e pe rsonn el), c apital, and

polit ical re prese ntation .1

1 Introdu ction

A ‘disaster’ can be described as a serious disruption of the functioning of a

community or society causing extensive human, material, economic or

environmental losses that exceed the ability of the affected community or society

to cope by using its own resources. As depicted here disast ers arise from both

2

LLM student, Faculty of Law, North-West University (Potchefstroom Campus). This note is based

*

on the unpublished LLB dissert ation of the author entitled: A right-based perspective on dis aster

management at local government level Potchefstroom (North-W est University) (2012).

Professor of Law, Faculty of Law, North-West Universit y (Potchefstroom campus).

**

Farber and Chen Disasters and the law: Katrina and beyo nd (2006) 121.

1

Holloway ‘Disaster risk reduction in South Africa’ (2003) 12 African Security Review 29 at 33. See

2

s 1 of the Disaster Management Act 57 of 2002 and the National Disaster Management Policy

Framework of 2005. In the environmen tal context, a disaster can also be defined as the result of

a vast ecological breakdown in the relationship between human beings and their environment. See

Van Niekerk A comprehensive framework for multi-sphere disaster risk reduction in South Africa

Som e pe rspec tives on co nstitu tiona l con flict in local disas ter m anage men t 449

natural and man-made causes. It is accepted that, in line with the quotation by

Holloway, that disasters, natural or man-made, increasingly impact on people’s

lives, prop erty, the environme nt, infrastructure and economic and social

activities. Globally, this is a time where humanity in general is dealing with

3

possibly the greatest ever frequency in the occurrence of natural and man-made

4 5

disasters. Damaging disasters have also been k nown to occur in South Africa.6

As suggested by the quotation from Farber and Chen above, depending on

their severity and impact, the ef fects of disasters include different degrees of

human suffering and damage to the resources and infrastructure on which people

depend for their survival, their livelihood, and the maintenance of their quality of

life generally. Communities are likely not to have the knowledge or resources to

7

detect and prepare for disasters and/or to restore disaster-stricken areas once a

disaster has occurred. All over the world the responsibility in terms of disaster risk

reduction, addressing the impacts of disasters as well as pos t-disaster damage

estimation and control is therefore the responsibility of state governments.

South African law places a legal duty on the state to foresee, prevent and

respond effectively to disasters. Section 24 of the Constitution of the Republic of

8

South Africa, 1996 (hereafter the Constitution), for example provides that everyone

9

has the right to an environment that is not harmful to his or her health or well-being

and to have the environment protected for present and future generations. The

10

(PhD thes is Potchefstroom (North-West University)) (2005) 12. Van Niekerk also describes a

disaster as a serious and sudden event on such a scale that the stricken community needs

extraordinary efforts to cope.

Louw and Van Wyk ‘Disaster risk ma nagement’ (2011) Civil Engineering 16 at 16.

3

Examples of recent natural disasters are earthquakes in California, tsunamis in Indo nesia, and

4

mudslides in China. See Meyer ‘Disaster management South Africa’ (2011) 7 Official Journal of the

Disaster Management Institute of South Africa 1 at 6.

There has been an alarming increase in the occurrence of man-made disasters suc h as the oil

5

spills in Alberta, Canada in 2010 and slow-onset man-made disasters such as acid mine drainage,

which is currently threatening Gauteng in South Africa. See Meyer (n 4) 6.

946 hazardous events were recorded in South Africa between 1800-1995. See Chagutah ‘Towards

6

improved public awareness for clim ate related disaster risk reduction in South Afric a’ (2009) 2

JAMBA Journal of Disaster Risk Studies 113 at 114. In June 2011, flooding caused by heavy rain

resulted in more than twenty informal settlements being displaced and in farming areas crops were

destroyed and soil eroded. This caused an estimated R328 million in damages. See Anon ‘South

African Weather and Disaster Information Source’ (date unknown) http://saweatherobserver

.blogspot.com/search/label/Disaster%20Aid (accessed 2013-03-05).

See also Louw and Van Wyk (n 3) 16.

7

Read together, ss 7(2), 41(1)(b) and 152(1)(d) of the Constitution, the DMA and National Disaster

8

Management Policy Framework of 2005 place a legal obl igation on governm ent to ensure the

personal and environmental health and safety of people in South Africa. See also SALGA Report

on Disaster Risk Management Status Assessment at Municipalities in South Africa (2011) 21.

Section 24 of the Constitution.

9

For an analysis of the wide scope of protection afforded by s 24 of the Constitution, see Du

10

Plessis Fulfilment of South Africa’s constitutional environmental right in the local government sphere

(LLD thesis Potchefstroom (North-West University)) (2008) 341-422, Du Plessis ‘South Africa’s